UNIVERSAL FABRICATORS, INC., PETITIONER V. CARL SMITH, ET AL.
No. 89-711
In The Supreme Court Of The United States
October Term, 1989
On Petition For A Writ Of Certiorari To The United States Court Of
Appeals For The Fifth Circuit
Brief For The Federal Respondent In Opposition
TABLE OF CONTENTS
Questions presented
Opinions below
Jurisdiction
Statement
Argument
Conclusion
OPINIONS BELOW
The opinion of the court of appeals (Pet. App. A1-A8) is reported
at 878 F.2d 843. The decision of the Benefits Review Board (Pet. App.
A9-A16) is reported at 21 Ben. Rev. Bd. Serv. (MB) 83. The decision
of the administrative law judge (Pet. App. A17-A26) is reported at 20
Ben. Rev. Bd. Serv. (MB) 707 (ALJ).
JURISDICTION
The judgment of the court of appeals was entered on July 31, 1989,
and the petition for a writ of certiorari was filed on October 30,
1989 (a Monday). The jurisdiction of this Court is invoked under 28
U.S.C. 1254(1).
QUESTIONS PRESENTED
1. Whether an employee engaged as a structural fitter who spent a
significant portion of his work time in activities expressly included
in the statutory definition of maritime employment -- the loading or
unloading of vessels and the repair and building of vessels -- was
"engaged in maritime employment" within the meaning of Section 2(3) of
the Longshore and Harbor Workers' Compensation Act (LHWCA), 33 U.S.C.
902(3) (1982 & Supp. V 1987).
2. Whether a yard adjoining navigable waters and used for the
loading and unloading of vessels, as well as for the fabrication and
repair of components for vessels and fixed offshore oil drilling
platforms, is a covered situs under Section 3(a) of the LHWCA, 33
U.S.C. 903(a) (1982 & Supp. V 1987).
STATEMENT
1. Petitioner Universal Fabricators, Inc., employed respondent Carl
Smith from January 1981 to April 1982, primarily as a structural
fitter who cut pieces of metal for use in building seagoing vessels
and fixed offshore oil drilling platforms. During the course of his
employment, Smith spent 126 days constructing a drilling barge, 66
days fabricating "stingers" (devices attached to vessels that lay pipe
beneath the sea), five days repairing a component of a drilling
tender, four days installing rubber bumpers on barge bumpers, two days
constructing a walkway for a "jack-up" barge, at least five days
loading barges, and 103 days building and repairing components for
fixed offshore oil drilling platforms. Smith performed all his
employment duties at petitioner's yard, which adjoined navigable
waters. Pet. App. A2-A3, A10-A11, A19-A21.
On April 30, 1982, Smith suffered a back injury in petitioner's
yard while placing a piece of floor plating that was to be installed
on a fixed offshore oil drilling platform. As a result of the
accident, Smith was totally and permanently disabled, and he has not
worked since the date of the injury. Subsequently, on February 22,
1985, he filed a claim for compensation with respondent Department of
Labor under the Longshore and Harbor Workers' Compensation Act
(LHWCA), 33 U.S.C. 901 et seq. Pet. App. A2-A3, A10, A19-A20.
2. The ALJ found that Smith satisfied the statutory eligibility
requirements and awarded him benefits. Pet. App. A17-A26. The
principal issues before the ALJ were whether the "status" and "situs"
requirements for coverage under Sections 2(3) and 3(a) of the Act were
met. See 33 U.S.C. 902(3), 903(a) (1982 & Supp. V 1987). /1/ After a
hearing, the ALJ found that during the 15 months of Smith's employment
with petitioner, he "worked all or part of at least 221 days in
activities covered by the Act," i.e., loading and unloading vessels
and repairing and building vessels and their components. Pet. App.
A23. The ALJ further determined that Smith had spent 103 days in
non-covered tasks, i.e., fabricating parts for fixed offshore oil
drilling platforms. Ibid., citing Herb's Welding, Inc. v. Gray, 470
U.S. 414 (1985). Relying on Northeast Marine Terminal Co. v. Caputo,
432 U.S. 249, 273 (1977), the ALJ held that because Smith spent "at
least some of his time in covered activities," he satisfied the status
requirement, even though he was not engaged in maritime employment at
the time of his injury. Pet. App. A23.
The ALJ also concluded that Smith sustained his injury on a covered
situs, finding that petitioner's yard "adjoined the navigable waters
of the United States" and that after fabrication, the components for
vessels and oil drilling platforms were customarily loaded onto barges
for shipping at petitioner's yard. Pet. App. A21-A22. Noting that
"the situs requirement simply mandates that the general area where a
claimant is injured be customarily used for loading, unloading,
repairing, dismantling, or building a vessel, and does not require the
specific locus of the injury to be in such a place" (id. at A21), the
ALJ determined that although the injury "did not occur at the locus of
a maritime activity(,) * * * the general area of (petitioner's)
fabrication yard was used for the maritime purpose of loading barges."
Id. at A22.
3. The Benefits Review Board affirmed. Pet. App. A9-A16. The
Board first rejected petitioner's argument that in determining whether
Smith was engaged in maritime employment, the ALJ should have
considered "the nature of the work which claimant was performing when
he was injured, how long he had been assigned to the work, the
sequence of work to which he was assigned immediately preceding the
injury, and the fact that the employer was not engaged in shipbuilding
work on the day of the injury." Id. at A12-A13. The Board explained
that petitioner's "arguments * * * neglect that claimant need not have
been engaged in maritime activities at the time of the injury as long
as he spent 'at least some of (his) time' in covered activities" (id.
at A13, quoting Northeast Marine Terminal, 432 U.S. at 273). The
Board was unpersuaded by petitioner's contention that Smith's work
constructing a drilling barge was merely a one-time project in
maritime activity, because it ignored his other involvement in
"loading and unloading component parts onto barges as well as his
fabrication of scanners (stingers)," activities similar to those
previously characterized as maritime by the Fifth Circuit. Ibid.,
citing Boudloche v. Howard Trucking Co., 632 F.2d 1346 (5th Cir.
1980), cert. denied, 452 U.S. 915 (1981), and Howard v. Rebel Well
Service, 632 F.2d 1348 (5th Cir. 1980).
The Board also agreed with the ALJ's situs determination, Pet. App.
A14, observing that "(t)he situs test simply requires that the general
area in which claimant is injured be customarily used for (maritime
tasks), and does not require that the area be exclusively used for
maritime purposes." Ibid. Accordingly, in the Board's view, the ALJ
properly held that "claimant was injured on a covered situs despite
the fact that his injury did not occur at the locus of (petitioner's)
maritime activities." Ibid.
4. The court of appeals affirmed the Board's ruling. Pet. App.
A1-A8. The court first concluded that substantial evidence supported
the finding that Smith spent a "significant portion of (his) time * *
* in indisputably longshore operations," and therefore met the Act's
status requirement. Id. at A5. Rejecting petitioner's reliance on
Jacksonville Shipyards, Inc. v. Perdue, 539 F.2d 533 (5th Cir. 1976),
which indicated that an employee must actually have been performing or
been directly involved in maritime employment at the time of the
injury, the court noted that this Court's subsequent decision in
Northeast Marine Terminal, as well as later Fifth Circuit decisions,
establish that the LHWCA's coverage includes "persons whose employment
is such that they spend at least some of their time in indisputably
longshoring operations." Pet. App. A4-A5 (emphasis omitted), quoting
432 U.S. at 273. The court also affirmed the Board's situs
determination, based on the ALJ's finding that petitioner "was engaged
in maritime activities in an area adjoining the water." Id. at A6.
The court rejected as "overbroad," and contrary to the express
language of Section 3(a), petitioner's contention that the Act's
protection should not extend to land-based workers such as Smith.
Ibid.
ARGUMENT
The decision of the court of appeals is correct and does not
conflict with any decision of this Court or of any other court of
appeals. Accordingly, further review is not warranted.
1. In 1972, Congress extended the coverage of the LHWCA in order
"to protect additional workers." S. Rep. No. 1125, 92d Cong., 2d Sess.
1 (1972). Congress first modified the Act's "situs" requirement by
extending coverage shoreward. It thus expanded the definition of
"navigable waters" under Section 3(a), 33 U.S.C. 903(a) (1982 & Supp.
V 1987), to include "any adjoining pier, wharf, dry dock, terminal,
building way, marine railway, or other adjoining area customarily used
by an employer in loading, unloading, repairing, or building a
vessel." See Chesapeake & Ohio Ry. v. Schwalb, 110 S. Ct. 381, 385
(1989).
At the same time, Congress amended the definition of "employee" in
Section 2(3), 33 U.S.C. 902(3) (1982 & Supp. V 1987), to describe
affirmatively the class of workers in that area eligible for benefits.
Congress accordingly added the requirement that the injured worker be
"engaged in maritime employment," which it defined to "includ(e) any
longshoreman or other person engaged in longshoring operations, and
any harbor-worker, including a ship repairman, shipbuilder, and
ship-breaker * * *." See Northeast Marine Terminal, 432 U.S. at
263-264. Applying this two-prong test for LHWCA coverage, the court
of appeals correctly held that Smith satisfied the statutory
requirements.
2. The court of appeals properly sustained the conclusion of both
the ALJ and the Benefits Review Board that Smith was "engaged in
maritime employment" within the meaning of Section 2(3). Smith worked
for petitioner for approximately 15 months. The ALJ found that Smith
spent a considerable part of this period in "loading or unloading
vessels, and * * * in the repair and building of vessels and
components of vessels" (Pet. App. A23), activities enumerated as
"maritime employment" in the Act. See 33 U.S.C. 902(3) (1982 & Supp.
V 1987). Petitioner does not dispute this finding. /2/ It instead
argues (Pet. 6-9) that the determination that a worker is covered if
he performed maritime tasks for a portion of his work time, even
though he was not engaged in a maritime activity at the moment of
injury, conflicts with this Court's decisions in Northeast Marine
Terminal and Herb's Welding, Inc. v. Gray, 470 U.S. 414 (1985), and
with the decisions of other courts of appeals. This argument is
without merit.
The court of appeals' decision is clearly consistent with Northeast
Marine Terminal. There, in examining the landward reach of the 1972
LHWCA amendments for the first time, the Court considered the claims
of two workers: a "checker," who was responsible for checking and
recording cargo as it was loaded or unloaded, and a longshoreman, who
at the time of injury was working as a "terminal laborer" helping to
load discharged cargo into trucks. The Court held that the checker
satisfied the status requirement because his checking the contents of
a container on shore on the day of the accident was "an integral part
of the unloading process as altered by the advent of
containerization." 432 U.S. at 271. The Court further held that the
terminal laborer met the status test because he spent at least some of
his time in "indisputably longshoring operations." Id. at 273. In the
Court's view, the Act's "focus on occupations and its desire for
uniformity" supported continuous coverage for workers under the LHWCA.
Id. at 276. See also P.C. Pfeiffer Co. v. Ford, 444 U.S. 69, 83 n.18
(1979) (citing with approval "the holding of Northeast Marine Terminal
* * * that a worker is covered if he spends some of his time in
indisputably longshoring operations").
Just this Term, Justice Blackmun, in a concurring opinion joined by
Justices Marshall and O'Connor, confirmed the continuing validity of
this "amphibious worker" doctrine articulated in Northeast Marine
Terminal and Ford. In Chesapeake & Ohio Ry. v. Schwalb, the Court
held that two terminal workers injured while engaged in janitorial
tasks during the ship-loading process, and a pier machinist injured
while repairing loading equipment, were "employees" covered by the
LHWCA because they were injured while performing tasks essential to
the process of loading ships. 110 S. Ct. at 385-386. In joining the
Court's opinion, Justice Blackmun wrote separately to stress that
"(i)nlight of Northeast Marine Terminal Co., * * * it is not essential
to (the Court's) holding that the employees were injured while
actually engaged in these tasks. They are covered by LHWCA even if,
at the moment of injury, they had been performing other work that was
not essential to the loading process." 110 S. Ct. at 386. Noting that
a purpose of the 1972 amendments was "to solve the problem that under
the pre-1972 Act employees would walk in and out of LHWCA coverage,"
Justice Blackmun stated that to limit coverage to employees who are
performing maritime work at the moment of injury "would bring the
'walking in and out of coverage' problem back with a vengeance." Id.
at 386-387. /3/
Nor does the court's resolution of the status issue conflict with
any decision of another circuit. The appellate courts uniformly have
held that workers who spend at least some of their time in undeniably
maritime activities, although not engaged in such activities at the
moment of injury, are employees for purposes of the Act. Browning v.
B.F. Diamond Construction Co., 676 F.2d 547, 548 (11th Cir. 1982),
cert. denied, 459 U.S. 1170 (1983); Brady-Hamilton Stevedore Co. v.
Herron, 568 F.2d 137, 140 (9th Cir. 1978); Stockman v. John T. Clark
& Son, Inc., 539 F.2d 264, 274 (1st Cir. 1976), cert. denied, 433 U.S.
908 (1977). The decisions cited by petitioner (Pet. 6-7) simply do
not address this issue. Instead, they consider whether the injured
worker performed any maritime duties at all. /4/ None articulates a
rule that a worker must be engaged in a maritime task at the time of
his injury. /5/
3. The court of appeals' conclusion that Smith's injury occurred on
a covered situs also comports fully with the statutory test. Under
the LHWCA, benefits are payable for "an injury occurring upon the
navigable waters of the United States (including any * * * adjoining
area customarily used by an employer in loading, unloading, repairing,
dismantling or building a vessel)." 33 U.S.C. 903(a) (1982 & Supp. V
1987). Smith was injured at petitioner's yard, which the ALJ found
"adjoined the navigable waters of the United States." Pet. App. A21.
The ALJ further determined that Smith sustained his injury in the
fabrication area of the yard, where components for both vessels and
fixed offshore oil drilling platforms were made and repaired, and that
"the general area of (petitioner's) fabrication yard was used for the
maritime purpose of loading barges." Id. at A22. The Board affirmed,
likewise concluding that petitioner's "yard was customarily used for
its loading and unloading activities, as well as for its fabrication
and repair of parts for vessels in addition to its platform work." Id.
at A14. The court of appeals' situs ruling rests on these findings.
See id. at A6.
Petitioner appears to challenge (Pet. 10) the court of appeals'
situs determination solely on the ground that an oil drilling platform
situated in the yard was the precise location of Smith's injury and
that such a platform does not meet the Act's situs requirement. This
contention misapprehends the statutory scheme. By the terms of
Section 3(a), the focus of the Act is on the "area" in which the
injury occurred (here, petitioner's yard), not on any particular piece
of equipment within that "area." See Northeast Marine Terminal, 432
U.S. at 280-281. /6/ Any other inquiry would be illogical and
contravene the settled rule that the LHWCA "'must be liberally
construed in conformance with its (remedial) purpose, and in a way
which avoids harsh and incongruous results.'" Northeast Marine
Terminal, 432 U.S. at 268, quoting Voris v. Eikel, 346 U.S. 328, 333
(1953). Because petitioner does not dispute that the yard itself was
an "adjoining area," and therefore a covered situs for purposes of the
LHWCA, the court of appeals' holding to that effect does not warrant
review.
CONCLUSION
The petition for a writ of certiorari should be denied.
Respectfully submitted.
KENNETH W. STARR
Solicitor General
ROBERT P. DAVIS
Solicitor of Labor
ALLEN H. FELDMAN
Associate Solicitor
STEVEN J. MANDEL
Counsel for Appellate Litigation
ANNE PAYNE FUGETT
Attorney Department of Labor
JANUARY 1990
/1/ Petitioner also contended that Smith's claim was untimely under
Section 13 of the LHWCA, 33 U.S.C. 913 (1982 & Supp. V 1987). The ALJ
rejected that contention on the ground that Smith's receipt of
payments under the state workers' compensation act tolled the LHWCA's
statute of limitations. Pet. App. A24. That ruling was affirmed by
the Benefits Review Board (id. at A15) and the court of appeals (id.
at A7-A8), and is not challenged in the petition for a writ of
certiorari.
/2/ In the court of appeals, petitioner likewise did not challenge
the ALJ's and the Board's conclusion that a portion of Smith's
employment had been spent in maritime activities.
/3/ Petitioner's reliance (Pet. 9-10) on Herb's Welding is
misplaced. There, the Court held that a person whose work consisted
solely of welding a gas flow line on a fixed offshore drilling
platform was not "engaged in maritime employment" within the meaning
of Section 2(3) of the LHWCA. 470 U.S. at 425-426. But neither the
Board nor the court below relied on Smith's building and repairing of
fixed platform components as establishing his maritime employment.
Rather, they correctly relied on his other, indisputably maritime
activities to establish that he spent at least a portion of his time
in covered employment. See Pet. App. A2-A3, A5, A12.
/4/ See Sanders v. Alabama Dry Dock & Shipbuilding Co., 841 F.2d
1085, 1088 (11th Cir. 1988) ("responsibilities as a Labor Relations
Assistant satisfy the status test"); General Dynamics Corp. v.
Sacchetti, 681 F.2d 37, 39 (1st Cir. 1982) ("the tasks at issue are a
necessary incident to the fabrication of a ship," and therefore are
covered); Fusco v. Perini North River Associates, 622 F.2d 1111, 1113
(2d Cir. 1980) ("activities had nothing significant to do with
navigation or with commerce on navigable waters," and therefore were
not covered), cert. denied, 449 U.S. 1131 (1981); Caldwell v. Ogden
Sea Transport, Inc., 618 F.2d 1037, 1050 (4th Cir. 1980) ("nature of
(worker's) duties may not have been fully developed on the record,
thereby leaving the question of LHWCA status open for resolution");
Dravo Corp. v. Banks, 567 F.2d 593, 595 (3d Cir. 1977) (worker's
"duties have no traditional maritime characteristics," and therefore
are not covered); Weyerhaeuser Co. v. Gilmore, 528 F.2d 957, 961 (9th
Cir. 1975) (it is "illogical to think of (employee's) work and duties
at or on an upland sawmill's log pond as 'maritime employment'"),
cert. denied, 429 U.S. 868 (1976).
/5/ Petitioner apparently perceives a circuit conflict because it
misapprehends the decision below. Contrary to petitioner's assertions
(Pet. 5-7), the court simply did not address the question whether a
land-based worker who is not engaged in one of the enumerated
occupations in Section 2(3) must be "directly involved" in or have a
"realistically significant relationship to" traditional maritime
activities. That is because Smith unquestionably performed some work
that is expressly included in the enumeration of occupations in
Section 2(3): longshoring and ship building and repairing. Pet. App.
A5. See Chesapeake & Ohio Ry. v. Schwalb, 110 S. Ct. at 385.
/6/ Petitioner errs in arguing (Pet. 9-10) that Herb's Welding is
to the contrary. In that case, the Court held that a welder on an
offshore drilling platform was not covered by the LHWCA because he did
not have the status of an "employee" within the meaning of the Act,
not because such a platform could never be a covered situs. See 470
U.S. at 425.